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The Rule of Law and the Limits of Anarchy Legal Theory, 27 (2021), 70–95. © The Author(s), 2021. Published by Cambridge University Press. This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives licence (http:// creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is unaltered and is properly cited. The written permission of Cambridge University Press must be obtained for commercial re-use or in order to create a derivative work. 0361-6843/21 doi:10.1017/S1352325221000045 THE RULE OF LAW AND THE LIMITS OF ANARCHY Carmen E. Pavel* Kings College London, London, England Abstract Anarchy is often contrasted with law, order, or security. But anarchist societies, by which I mean societies that lack a monopoly of coercive force, need not be lawless. They can develop sophisticated legal systems that regulate the behavior of their mem- bers and protect their rights. International law, market anarchism, and other models of anarchism such as the one proposed by Chandran Kukathas already exhibit or could plausibly exhibit complex legal rules and institutions. I will show that insofar as these models rely on consent, they all share similar structural flaws, namely, that they can- not meet basic rule-of-law values such as equality before the law and access to legal remedies for wrongs that embody and respect individual moral equality, even mini- mally conceived. The implication of this argument is not to vindicate state-based legal systems. Rather it is to show that legal systems, state-based or not, must have a strong nonconsensual, coercive element: the process of making, applying, and enforcing law must, to some extent, be severed from consent if law is to perform its function of providing for minimal justice. Anarchy is often contrasted with law, order, or security. Most social contract theorists justify the state as an alternative to a state of nature in which indi- viduals enjoy little or no protection from law.1 But anarchist societies, by which I mean societies that lack a monopoly of coercive force, need not * I would like to thank the following colleagues for feedback: Jiewuh Song, John Meadowcroft, Billy Christmas, Paul Reckstad, Diana Popescu, Charles Delmotte, Otto Letho, Adam Tebble, and the participants at the political theory workshop at KCL. 1. THOMAS HOBBES,LEVIATHAN:WITH SELECTED VARIANTS FROM THE LATIN EDITION OF 1668 (Edwin Curley ed., Hackett Pub Co. 1994); CHRISTOPHER W. MORRIS,THE SOCIAL CONTRACT THEORISTS: CRITICAL ESSAYS ON HOBBES,LOCKE, AND ROUSSEAU (1999); JOHN LOCKE,TWO TREATISES OF GOVERNMENT (3d ed. 1988); JEAN-JACQUES ROUSSEAU,THE BASIC POLITICAL WRITINGS (Donald A. Cress ed. & trans., Hackett Publishing 1987); IMMANUEL KANT,KANT:THE METAPHYSICS OF MORALS (Lara Denis ed., Mary Gregor trans., 2d ed. 2017). 70 Downloaded from https://www.cambridge.org/core. IP address: 170.106.35.76, on 30 Sep 2021 at 01:29:32, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1352325221000045 The Rule of Law and the Limits of Anarchy 71 be lawless. They can develop sophisticated legal systems that regulate the behavior of their members and protect their rights. They can have first- order rules that set limits on the way in which individuals can inconvenience and harm each other, and second-order rules about how to make, change, interpret, and apply first-order rules.2 They can also develop sophisticated institutional machinery, such as courts and legislative assemblies, whose role is to administer and enforce the rules. International law is an example of a consensual legal system that has developed in an anarchic world. In the absence of a global leviathan, states and nonstate agents have created legal rules from the ground up via multi- lateral and bilateral treaties that mainly apply with state consent. International law relies on multiple regional and international courts to set- tle disputes, and assemblies of state parties can make and change rules.3 International law does contain bodies of law that are said to apply without state consent, such as customary law, the rules of the UN Charter, and jus cogens norms, but by and large, consent plays a critical role in its operation. The Vienna Convention on the Law of Treaties (VCLT), a body of second- ary rules that regulate the making, validity, and termination of treaties, states in its Article 34 that “[a] treaty does not create either obligations or rights for a third State without its consent.” There are other possible models of consensual anarchist legal systems. Self-governing communities bound together by close cultural or religious ties can create legal rules around their core values.4 Still other anarchist mod- els are based on law enforcement provided by competing private security companies.5 These various imagined visions of a world without a state can be described as free associationism, anarcho-capitalism, or variations of the two. I will show that they all share similar structural flaws, namely, that they cannot meet basic rule-of-law values such as equality before the law and access to legal remedies for wrongs, and that to the extent that they do, they cease to function as anarchist legal systems. In consensual legal systems, consent (or lack thereof) can decouple the authority of the legal rules from that of the institutions that apply and enforce them. Legal subjects can refuse to give consent to adjudication and enforcement institutions even when they con- sent to rules, resulting in the uneven application of the latter and unequal accountability for rule-breaking. The case of international law shows how acute this problem can be. I will not defend these rule-of-law features here, but rather will assume their centrality in a minimally just, working legal order. 2. H. L. A. HART,THE CONCEPT OF LAW (Penelope A. Bulloch & Joseph Raz eds., Clarendon Law Series, 2d ed. 1997). 3. KAREN J. ALTER,THE NEW TERRAIN OF INTERNATIONAL LAW:COURTS,POLITICS,RIGHTS (2014); IAN BROWNLIE,PRINCIPLES OF PUBLIC INTERNATIONAL LAW (6th ed. 2003); STEVEN R. RATNER,THE THIN JUSTICE OF INTERNATIONAL LAW:AMORAL RECKONING OF THE LAW OF NATIONS (2015); THE OXFORD HANDBOOK OF THE HISTORY OF INTERNATIONAL LAW (Bardo Fassbender & Anne Peters eds., 2012). 4. CHANDRAN KUKATHAS,THE LIBERAL ARCHIPELAGO:ATHEORY OF DIVERSITY AND FREEDOM (2003). 5. DAVID D. FRIEDMAN,THE MACHINERY OF FREEDOM:GUIDE TO A RADICAL CAPITALISM (3d ed. 2015); MURRAY NEWTON ROTHBARD,FOR A NEW LIBERTY:THE LIBERTARIAN MANIFESTO (1978). Downloaded from https://www.cambridge.org/core. IP address: 170.106.35.76, on 30 Sep 2021 at 01:29:32, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1352325221000045 72 CARMEN E. PAVEL The implication of this argument is not to vindicate state-based legal systems. Rather it is to show that legal systems, state-based or not, must have a strong non- consensual, coercive element that places rule-of-law features at their core. The process of making, applying, and enforcing law must, to some extent, be severed from consent if law is to perform its function of providing for minimal justice. Compared to the state-based legal systems that offer more robust rule-of-law pro- tections, namely, liberal democratic systems that emphasize equality of legal rights and the compulsory jurisdiction of the institutions that interpret and apply them, consensual legal systems cannot enjoy the uniformity and consis- tency necessary to embody and respect individual moral equality, even mini- mally conceived. I leave open the possibility that anarchist systems organized around nonconsensual principles may be able to overcome these challenges. This finding invites us to reevaluate our concept of law and consider more carefully which features are necessary for functioning, just legal orders. It provides a new justification for a series of features often consid- ered necessary, but whose necessity is often misunderstood, namely, the uniform protection of legal subjects—and therefore a new justification for the generality of rules and comprehensive legal jurisdiction. The struc- tural failings of consensual anarchist legal systems show that the justification of these features rests on essential demands of legal justice. I. LAW UNDER INTERNATIONAL ANARCHY Central to anarchist thought is the idea that state authority is in tension with individual autonomy. There are various reasons for this, including the absence of actual consent of most individuals to the authority of the states they happen to live under, the belief that states as institutional structures mostly serve the interests of capitalist producers, and the belief that state services are not subjected to the discipline of the market and are thus inef- ficient and wasteful. Whatever their reasons for rejecting state authority, anarchists share the view that there is a deep tension between individual autonomy and state authority. Robert Paul Wolff has succinctly captured this idea in his well-known essay In Defense of Anarchism: The defining mark of the state is authority, the right to rule. The primary obli- gation of man is autonomy, the refusal to be ruled. It would seem, then, that there can be no resolution of the conflict between the autonomy of the indi- vidual and the putative authority of the state. Insofar as a man fullfils his obli- gation to make himself the author of his decisions, he will resist the state’s claim to have authority over him. That is to say, he will deny that he has a duty to obey the laws of the state simply because they are the laws. In that sense, it would seem that anarchism is the only political doctrine consistent with the virtue of autonomy.6 6.
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